M.C.D v. Duley Ram

JUDGMENT SIDDHARTH MRIDUT' t' (o"lt

¶1The Writ petition is dismissed. For detailed orders see Writ petition(Civi | )3837 12008. a ,- September 19, 2OO8 ai t) ''/frR/ffiroul,r. Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. BALBIR SINGH Through: None .with ri! Writ petition (Civil) 3841 of 2Oo8 MUNICIPAL CORPORATION OF DELHI Through: Ms. Saroj VCTSUS VISHNU DAYAI: Through: None with Writ Petition (Civil) 3842 of 2OO8 MUNICIPAL CORPORATION OF DELHI Through: Ms. Saroj rN THE H|GH COURT OF DELHT AT NtW DELFil, 'r/ Writ Petition (Civil) 3837of 2OO8 ,,/ x + \{ (D *f*,, Date of Decision: 19th September, 2008 MUNICIPAL CORPORATION OF DELHI ..... Petitioner Through: Ms. Saroj Bidawat, Adv. VCTSUS PARTAP SINGH Through: None with Writ Petition (Civil) 3838 of 2OO8 MUNICIPAL CORPORATION OF DELHI Through*: Ms. Saroj VCTSUS M URLI DHAR Through: None with Writ Petition (Civil) 3840 of 2OO8 MUNICIPAL CORPORATION OF DELHI ..... Respondent ..... Respondent Through: Ms. Saroj Bidawat, VCTSUS ..... Petitioner Bidawat, Adv. ..... Petitioner Adv. ..... Respondent .. Petitioner Bidawat, Adv. ..... Respondent ..,.. Petitioner Bidawat, Adv. ;*"e WP(C) 38.t1 of 2008 VCTSUS I'age I of .I L ft f FATEH SINGH Through: None with Writ ietition (Civit) 3843 of 2OO8 MUNICIPAL CORPORATION OF DELHI Through: Ms. Saroj . VCTSUS MAHINDER SINGH Through: None with Writ Petition (Civil) gB44 of 2OOB MUNICIPAL CORPORATION OF DELHI Through: Ms. Saroj . DAYA NAND VCTSUS Through: None with Writ Petition (Civil) 3845 of 2008 M uN rct PAL coRPor^Ioil, or,?5H r", VCTSUS MISHRI DEVI Through: None with Writ Petition (Civil) 3846 of 2OOB MUNICIPAL CORPORATION OF DELHI Through: Ms. Saroj VCTSUS Through: None writ petition t[lt",t, sB47 of 2oo8 MUNICIPAL CORPORATION OF DELHI WP(C) sB'3F of 2oo9 I ..... Respondent ..... Petitioner Bidawat, Adv. .....Rgspondent ..... Petitioner Bidawat, Adv. ..... Respondent ..... Petitioner Bidawat, AQv. ..... Respondent ..... Petitioner Bidawat, Adv, ..... Respondent ..... Petitioner t- '.) I I r."c._{ !.r'i|i*- i i I d *"*@ BADLU RAM ,l -...__-:-_:= Page 2 of11 t IIl- ,U Through: VCTSUS CHIRANJI LAL Through: None with Writ Petition (Civil) 3848 of 2OO8 MUNICIPAL CORPORATION OF DELHI Ms. Saroj Bidawat, Adv. Through: Ms. Saroj VCTSUS ..... Respondent ..... Petitioner Bidawat, Adv. 'f DULEY RAM Through: None with Writ Petition (Civil) 3849 of 2OO8 MUNICIPAL CORPORATION OF DELHI Through: Ms. Saroj VCTSUS HUKAM CHAND Through: None with Writ Petition (Civil) 4OL4 of 2008 MUNICIPAL CORPORATION OF DELHI Through: Ms. Saroj VCTSUS DESH RAJ Through: None with Writ Petition (Civil) 4L85 of 2OO8 MUNICIPAL CORPORATION OF DELHI Through: Ms. Saroj VCTSUS HEERA LAL ..... Respondent ..... Petitioner Bidawat, Adv. ..... Respondent .... Petitioner Bidawat, {dv. ..... Respondent ..... Petitioner Bidawat, Adv. ..... Respondent "9 ."*( a{ wP(C) 38)l of 2oo8. Page 3 of11 Through: None CORAM: HgN'BLE MR. JUSTTCE STDDHARTH MRTDUL

¶1whether reporters of local papers may be allowed to see th,e judgment? To be referred to the Reporter or not? whether the.judgment should be reported in the Digest? JUDGMENT

¶1These fourteen petitions are fired on beharf of Municipal corporation of Derhi(corporation) assairing the order passed_ by the Appella.te Authority under the payment of Gratuity Act, {ir,

(Act). since the fourteen petitions raise a common question of law in respect of applicability of the Act to the employees of the corporation, I propose to dispose the petitions by this common judgment. 2' Counsel appearing on behalf of the corporation, firsily asserted that in similar matters notices have been issued and the next date of hearing in those similar matters is 22nd October, 2008. lt was further urged that the present petitibns be risted and heard with those petitions. However, in view of the fact that this issue is no longer res integra in terms of decision of supreme courL as well as of this court cited hereinbelow, I am proceeding to dispose of these petitions at this stage.

¶3The short question that narration of brief facts which are wP(c) 353'? of 200s arises for consideration requires a adumbrated as follows:- % v I-LJ

2.

¶3'y< I I I,age4ofll Therespondent/emp|oyeeineachofthesepetitionsisa

(ii) retired employee of the Corporation' Each of them received retirement benefits including gratuity payable in terms of CCS pension Rules Ig72 (Pension Rules) adopted by the CorPoration. Eachofthemfi|edanapp|icationbeforetheContro||ing Authority (C'A.) under the Act claiming additional amount of gratuity that was payable in terms of the Act' By separate orders the C'A' held that provisibns of the Act were to apply to employees of the Corporation regardless oftheapplicationofthePensionRulesti||thetimewhen the central Government being appropriate Government has granted exemption under Section 5(2) of the Act to the Coiporation. .By separate orders the C'A' thereby computed the gratuity payable under the Act and directed the Corporation to pay each of the retired employee an additional amount of gratuitytogetherwithsimp|einterestthereonattherateof 10%perannumundertheprovisionsofSectionT(3-A)of the Act for the period commencing from the date of retirement.

(1) Sh. Partap Singh.S/o Sh' Kundan Singh' respondent in Writ Petition (CiYil) 383'7/08 was directed to be paid a sum of Rs.18,159/-'together with interest thereon @ 10% from 31't October, 1999' liI I

(iii) (iv1

(v) wP(C) 3s37' of 2oo8 Page 5 of L1 1i .l I llr I ti il; llll:r tt ,/, tl- ' lr t:,ilr,:' l, 'ti I , i'r' .J '1, / ill lli il ti ,rl ;t 'rl ,lr I' l1ili rt. .l 1i lrii I I v" .s t i :

(2) :n Murlidhar S/o Sh' Sohan Lal' respondent Petition(Civil) 3838 l2O0B was directed to be paid a Rs.29,075/- together with interest thereon with interest @ 10% per annum from 31't October' 2000'

(3) Sh. Balbir Singh S/o Late Pyarelal' respondent Petition(Civil) 3840 I2OOB was directed to be paid a Rs.13,616/- together with interest thereon with interest @ 10% per annum from 30th June' 2000'

(4) Sh. Vishnu Dayal S/o Sh' Gopal Dass' respondent in Writ Petition(Civil) 3841 I2OOB was directed to be paid a sum of Rs.31,810/- together with interest thereon with rate 'of interest @ 10% per annum from 31't January' 2001'

(5) Sh. Fateh Singh S/o Sh' Chattar' respondent in Writ Petition(Civil) 3842/2008 Singh was directed to be paid a sum of Rs.20,522l-together with interest thereon with rate of interest @ 10% per annum from 31't Marcn' 2002' in Writ sum of rate of in Writ sum of rate of respondent in to paY a sum with rate of l II I I I i"-*,4) - g!/

(6) Sh. Mahander Singh S/o Sh' Jag Ram' Writ Petition(Civil) 3843 |2OOB was directed Rs.7,560/- together with interest thereon interest @ 10% per annum from 9th November' 2004.

(7) Sh. Dayanand S/o Sh' Sher Singh' respondent in Writ Petition(Civil) 3844 l20OB was directed to be paid a sum of Rs23,1331-together with interest thereon with rate of interest @ 10% per annum from 31't May' 2000' \o ri.7\

(B)Smt.MishriDeviW/oSh.ChattarSingh,respondentin WritPetition(Civi|)3845|2oo}wasdirectedtobepaida sum of Rs. 8,60U-together with interest thereon with rate of interest @ 10% per annum from 30th June'. 98 till the date of actual PaYment of the same'

(9) Sh. Badlu Ram S/o Late Sh' Bansi Rarn' respondent in writ Petition(civil) 384612008 was directed Rs'l4,9621- ' together with interest thereon with rate of interest @ 10% per annum from 31'tJanuarY, 2005'

(10)Sh.ChiranjiLa|S/oSh.La|Chand,respondentinWrit petition(civil) 3847 l2oo8 was directed to be paid a sum of Rs.39,946/- together with interest thereon with rate of interest @ 10% per annum from 30th June' 2001'

(11) Sh. Duleh Ram S/o Late Sh' Chet Ram' respon.dent in writ Petition(civil) 3B4B .2oa} was directed to be paid a sum of Rs.22,00.8/'together with interest thereon with rate ofinterest@10%perannumfrom3l'tAugust'1999'

(12)Sh.HukumChandS/oSh'GangaDutt,respondentin writ Petition(civil) 3849 I2OOB was directed to be paid a sum of Rs.37,9BB/- together with interest thereon with rate of interest @ 10% per annum from 31't March' 2002'

(13) Sh. Des Raj s/o Late sh. Lal chand, re'spondent in writ ' Petition(Civil) 4OI4;20OB was directed to be paid a sufm of Rs.37 ,3221-together with interest thereon with rate of q) wP(C) 38'37 of 2008 Page 7 of11 \r )A i.nterest @ 10% per annum from 31" December, )OOq the date of actual payment of the same. (141 Sh.'Heera Lal S/o Sh, Badri Nath, respondent in Writ Petition(Civil) 4l-85|2OOB was directed to be paid a sum of Rs.39,025/- together with interest thereon with rate'of interest @ 10% per annum from 31" December, 2000.

(vi) Corporation filed an appeal against the order of CA before . the Appellate Authority. The appeals filed by the Corporation before the Appellate Authority were' dismissed vide a separate order which are subject matter of llenge in these fourteen writ petitions.

¶4lt is an admitted position that the relevant notification under the Act was issued by th9 appropriate Authority subsequent to the retirement of each of the respondents in these Writ Petitions. lt is fairly conceded by counsel appearing on behalf of the Corporation that the said notification could operate only prospectively and not retrospectively. lt is submitted, however, that notification was applicable as on the date of consideration of the applications filed by the respondents. ln other words, since the notification was in force on the date when the C.A. determined the applications on the respondents those applications were not maintainable at all. Counsel submits that on the date of notification C.A. was functus officio and could not entertain applications under the Act. I am unable to accept this submission of the Corporation. i WP(C) s&rT of 2oog Page B ot 11. ,' . '..t-. ' ;' .'- ".' r '1f r.i'.'1 ',. , _,d ,GJ'. \/ I I

¶5I am unable to accept the submissions of the counsel for the Corporation. lt is apparent that till the date of the subject notification namely 22"d )uly,2005, the corporation was statutorily obliged to comply with the obligations under the Act. lt is seen, that this question has been determined against the Corporation by the decision of the Supreme Court in Municipal Corporation of Delhi vs. Dharam prakash and ors; (1998) Tscc 221. In that case the question that arose for consideration .was whether an employee of the Corporation would be entitled to payment of gratuity under the Act when the Corporation itself adopted the Pension Rules, particularly when thq latter contains provision foi payment of pension as well as gratuity. The supreme Court held that: "The Act was a special provision for payment of gratuity." and "Unless there is any provision ther.ein which excludes it applicability to an employee who is otherwise governed by the provisions of the Pension Rules, it is not possible for us to hold that the respondent is not entitled to the gratuity under the Payment of Gratuity Act." It was categorically held that: "The MCD employee, therefore, would be entiiled to the payment of gratuity under the payment of Gratuity Act. The mere fact that the gratuity is provided for under the pension Rules will not disentitle him to get the payment of gratuity under the payment of gratuity Act."

¶6The above decision of the Supreme Court has been followed by this Court in Writ Petition (Civil) No.9318 of 2007, Writ Petition (Civil) No. 6280 of 2008, Writ Petition (Civil) No. 6282 of 2008, Writ Petition (Civil) No. 6284 of 2008 and Writ Petition (Civil) No.62BB of 2008. Thus, there can be no manner of doubt that employees of the Corporation B I ;A P"*€F lfxt 7/ It,' ,q I WP(C) seAl of 2oo8 Page9ofll I I \, who retired till the date when the notification came into force would be entitled to be paid gratuity in terms of the Act. However, since they would not be entitled to derive a double benefit they would be entitled to receive only the differential amount between the gratuity calculated 'underthe Act and that paid to them pursuantto the pension Rules. I

¶7lt is also observed that the pronouncement of law by this Court in Municipal Corporation of Dethi vs. Nand Kishore;2003(102) DLT 518, is to the efiect that "fhe denial of the payment of the gratuity under the Act is a continuing wrong and there is no question of any delay in approaching the Controlling Authority and the claim of gratuity cannot be resisted on the ground of delay" . Therefore, it is axiomatic that it was not necessary for the employee to make an application for the purpose since the denial of the payment of gratuity under the Act is a continuing wrong and the Corporation was statutorily bound to do so on its own. Resultanily, there is no question of any deray in approaching the CA and the claim of gratuity cannot be declined only on that account. In the circumstances, it is not open to the Corporation t to deprive any of its employee who retired before the issuance of the subject notification of the payment of gratuity under the Act. Also it was neither necessary for the employee to seek condonation of delay, if any, which they did, nor requisite for the cA or the Appellate Authority to condone the delay, which was done, since the non-receipt of gratuity was a continuing wrong, grant of which courd not be precluded only on the question of delay.

¶8Finally the submission on behalf of the corporation was functus officio on the date of consideration of the vw(C) 3o.37 of 2oo9 that the CA applications, Page 1O ofI1. I I t t, L; "3q27-w does not hold water, for the reason that the notification issued by the appropriate Government exempting them from the operation of the Act was subsequent to the retirement of the respondent-employees, and no such notification can have retrospective operation, so as to, extinguish substantial rights already vested in the employees by virtue of the operation of provisions of law. No other point was raised on behalf of the Corporqtisp.

¶9In the facts and circumstances no infirmity is discerned in the impugned orders, insofar as, they directed payment of balance gratuity under the provisions of the Act. Therefore, I find no merit in any of these petitions and they are consequently dismissed, however, without any order as to costs. \'q !: -.( v I ,,1*LA stDDtflAR.TH MRIDUL, J. September L9, 2OO8 ) wP(c) 3st7 of 200s

t< lN THE HIGH COURT OF DELHI AT NEW DELHI I' I' + Writ Petition (Civil) 3848 of 2OO8 Date of Decision: 19th September. 2008 MUNICIPAL CORPORATION OF DELHI ..... PCtitiONCT Through: Ms. Saroj Bidawat, Adv. versus DULEY RAM ..... ResPondent Through: None % CORAM: HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether reporters of local papers may be allowed to see .i* O the judgment? 0- 2, To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest?